NANCY HICKS / Lincoln Journal Star | Posted: Sunday, March 6, 2005 6:00 pm
In an ideal world, hundreds of polluted sites across the state gas stations with leaky underground tanks, old dry cleaners or manufacturers that used solvents or stored hazardous wastes would be completely cleaned up.
But there isn't enough money to clean up everything. More Session 2005 stories
So the Nebraska Legislature is opting for a practical solution through what are called "environmental covenants" in a bill that adopts a national model.
Under the new system, a landowner and the Nebraska Department of Environmental Quality (DEQ) would come to an agreement about what cleanup should be done and what restrictions there should be on future use of the land.
An environmental covenant, spelling out the agreement, would be recorded with the county register of deeds, available to warn prospective buyers of the limitations on the land, according to Lincoln Sen. Chris Beutler.
A former gas station site, where leaking fuel has contaminated soil or ground water, may be an appropriate place for a parking lot, but maybe not an appropriate place to build a home, said Sen. Ed Schrock of Elm Creek.
The measure is in part recognition of failure, the failure of the culture to clean up all polluted sites, Beutler said. So it is a disappointment.
But the proposal also would allow landowners to put "brown fields" back to use, and the covenant would identify those places "where, in a sense, we have to be careful where we step," he said.
The state has an estimated 2,200 brown fields property that may have pollution problems that could complicate development, according to Ted Huscher, voluntary cleanup coordinator for DEQ.
The proposal acknowledges that there are limited resources and some degradation may never be completely repaired, said Lincoln Sen. David Landis, sponsor of the plan. The bill allows DEQ to require remediation. Then all parties agree that the future uses will be limited, he said.
The environmental covenant makes the land more marketable because future owners know the situation. Right now such land often can't be sold because potential buyers don't know what kind of cleanup might be required.
"There are no buyers. No one wants anything to do with the property," Landis said.
Using a purely hypothetical example, Landis said that DEQ might require a landowner to remove the top 10 feet of soil and fill in with sand. The environmental covenant might allow the land to be used for storage buildings but not for homes.
The proposal has an unusual partnership, with the Sierra Club Nebraska joining the state's bankers, the bar association, and BNSF Railroad in support of environmental covenants.
In general, the Sierra Club would like everything cleaned up to the highest level possible, said Ken Winston, who lobbies for the environmental group. But if environmentalists demand that and nothing happens, then land stays in a contaminated state.
In some situations, it is better to have some remediation and a covenant restricting its use, rather than to expect the impossible, he said.
The proposal is offered as a national solution, with language developed by the National Conference of Commissioners on Uniform State Laws. Nebraska could become the second state in the nation to create the environmental covenant system. The proposal (LB8) was attached as amendment to another bill (LB298) last Monday and the package received strong first-round approval.
Ohio has adopted environmental covenant legislation and similar bills have been introduced in at least 15 states, said Larry Ruth, a member of the commission, which offers model legislation on issues that affect all states.
DEQ currently can work out agreements for cleanup and some restricted use of land, but the environmental covenant measure would provide consistency across states and offer some greater protection, allowing any party to the covenant to enforce the restrictions.
"That is important on redevelopment of sites, particularly where the financing interests, the banks, want to be sure that their interests are protected," said Jay Ringenberg, DEQ deputy director.
"On the surface, the national uniformity doesn't seem to be important. But many projects are big, and their financing comes from out of state. Having uniform covenants across the country provides a comfort level for the financing people," said Ringenberg.
Reach Nancy Hicks at 473-7250 or nhicks@journalstar.com.